February 2, 2013

Here's a case the Supreme Court accepted for review last month that's about a father who gave up his parental rights via text message:

Facts of the Case
When the biological mother of Baby Girl became pregnant she did not live with the father and the father did not support the mother financially. The mother sent the father a text message asking if he would rather pay child support or relinquish his parental rights. He sent a text back, saying that he would relinquish his rights, though he later testified that he thought he was relinquishing his rights only to the mother. The biological father was a registered member of the Cherokee Nation. The biological mother attempted to verify this status, but spelled the father’s name wrong and misrepresented his birthday in the request, so the Nation could not locate the father’s registration. The mother listed Baby Girl’s ethnicity as “Hispanic” instead of “Native American” on the birth certificate. The mother decided to put Baby Girl up for adoption because she had two other children that she struggled to support.

Adoptive Couple, who resided in South Carolina, began adoption proceedings in that state. The Cherokee Nation finally identified the father as a registered member and filed a notice of intervention, stating that Baby Girl was an “Indian Child” under the Federal Indian Child Welfare Act (ICWA). The father stated that he did not consent to the adoption and would seek custody of Baby Girl. After trial, the family court denied Adoptive Couple’s petition for adoption and granted custody to the biological father. The court held that the biological father was a “parent” under the ICWA because of his paternity and pursuit of custody as soon as he learned that Baby Girl was being put up for adoption. Adoptive Couple did not follow the procedural directives in the ICWA to obtain the father’s consent prior to initiating adoption proceedings. The Supreme Court of South Carolina affirmed.

Question
Can a non-custodial parent invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law?

Does ICWA define “parent” to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

More info here: Baby Girl was 27 months old and had been living with the adoptive couple since birth when South Carolina Supreme Court told them that they were "ideal parents" but they had to turn the the child over to the biological father she had never met. Under state law, the child would stay with the parents, but the federal law "calls for special procedures rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Indian children."

48 comments:

Just what the adoption system needs: more horror stories of biological parent recanting, repenting and otherwise changing their minds after fucking-up, thereby wrecking and nullifying the dreams of adoptive parents.

"Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge’s certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian."

Question 2 - Yes.

"(9)“parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established;"

The Baby Richard case was a highly publicized custody battle that took place over Danny Kirchner, a young child whose adoption was revoked when his biological father, Otakar Kirchner, won custody in a case that was decided in 1995 by the Illinois Supreme Court. The child became known as "Baby Richard" in widespread media coverage.

The child was brought to his adoptive home four days after his March 16, 1991 birth by Jay and Kim Warburton of Schaumburg, Illinois, who pursued a private adoption with the consent of the child's biological mother, Daniela Janikova, who had been living with the father, Otakar Kirchner, until a few weeks before the birth of the child when she moved out following an argument. Court records show that Janikova subsequently told Kirchner that the baby had died. Despite being told of the death, Kirchner searched for confirmation with local hospitals and by searching public records. Two months after Richard was born, a friend of the biological mother told Kirchner the truth, and he intervened in the adoption proceedings to gain custody of his son.

[edit] Events of the custody battleThe Warburtons fought to keep the child. The Circuit Court of Cook County, Illinois upheld Kirchner's paternity of the child and his right to intervene in December 1991, but a subsequent ruling declared him an unfit parent and permitted the adoption to proceed, because the request to block the adoption occurred more than the 30 days after the child's birth required under Illinois state Adoption Law, Article I. Otakar filed an appeal with the Illinois Appellate Court. The Circuit Court ruling was upheld. An appeal was filed with the Illinois Supreme Court who agreed to hear the case.

Three years after the birth of the child, in June 1994, the Illinois Supreme Court ruled that the Circuit Court of Cook County and the Illinois Appellate Court had wrongly terminated Kirchner's parental rights, and the adoption was improper. Under Illinois law, courts can only consider a child's best interests if a biological parent is determined to be unfit. Justice James Heiple issued the order requiring that the child be removed from his home and turned over to Kirchner, whom he had never met. The Warburtons filed petitions with the United States Supreme Court seeking to stay and overturn the enforcement of the Illinois Supreme Court decision; however, these petitions were denied.

[edit] Following the Supreme Court rulingIn January 1995, Kirchner, seeking enforcement of the Illinois Supreme Court's ruling, filed a Petition for Habeas Corpus. The petition was granted. On April 30, 1995, Danny Warburton / Kirchner was transferred from the Warburtons to the care of his father as television and print reporters documented the event. The child never saw or spoke with his adoptive parents again.

In one of his many columns on the case, nationally syndicated Chicago Tribune columnist and author Bob Greene quoted a priest present at the transfer who said Otakar Kirchner had told the child on that day that he would be allowed to see his adoptive parents and brother whenever he wished.[1] Greene wrote that Kirchner later said that the child had no desire to see his adoptive parents, and that the Warburtons had not requested to see Baby Richard.[1]

I wouldn't think so, especially in serious matters such as this, because you cannot be assured that the person texting is the person themselves rather than someone else using his phone, perhaps someone who doesn't share his interests, such as an angry parent or new girlfriend.

It's sad and awful... I have one question though... if the father couldn't be located in the tribal registries and the mother had his phone number, why didn't she text him again? Indians seem to have some pretty strict rules. Why did she put "Hispanic"? Was she advised that if she put American Indian (or whatever) that she'd *have* to find the father and get better "consent?"

It's possible, I suppose, that the father did understand he was giving up his paternal rights but that he's being pressured by his tribe, once they found out about it, because they don't want to lose one of their children, but how would they have found out about it?

It's sad, yes, but it's really not acceptable to treat paternity as casually as our society does. (Though the Indian nations seem to have much stricter rules.) We can test paternity now. We can *know*. And it's irrational to continue to have bipolar policies that demand a father's love and full engagement and financial support in one arbitrary situation and a father's complete neutrality and disengagement in another.

I appreciate that the state is very careful to ensure that the natural (biological) parents have every chance to claim their child and to fix their problems, rather than just having their children seized by the state and handed over to strangers.

I have friends, a local gay couple, who fostered and adopted three young children whose mother was a drug addicted stripper prostitute. It took damn near forever to establish who the father was, and where each was, to contact them to have them officially legally accept or decline his parental rights. The courts gave her a long time to clean up her act and become a fit mother.

Finally all of those things came to a conclusion and the parental rights were terminated all around, and the extended bio families declined the opportunity to raise these children, and the gay couple legally finalized their adoption.

It's interesting really. This gay couple married in another state where it's legal, and represent themselves as married, and our state has a constitutional amendment defining marriage as one woman and one man. So they aren't recognized as married in Kentucky. But the family court judge allowed each dad to legally adopt the children. They are both recognized as parents of the children they're raising, but their relationship is not recognized.

Adoptions of newborns by a couple with an unmarried Mom's consent usually happen this way.

First the father who is an 18 to 20 year old unemployed teenage emotional child himself just wants to get revenge on the mother so he has paid her no support. He sees that as her punishment for leaving him for beating her and being a deadbeat.

Then the request that he consent to terminate his rights alerts him to the value of withholding consent and making the child hostage to get the mother back. It also gives him an opportune con job for getting his friends and and his parents to "help him."

In Georgia the failure to have contacted or pay any support to the mother for 12 consecutive months will allow the Judge to terminate his rights without his consent.

But he still gets served and attends the hearing where various friends and family member do help him with a plethora of excuses...He did not know how to find her... he had no money...and he will only agree to terminate if he retains a veto on the child's future custody if the adopting parents ever divorce... and besides he was in jail some of the time, and on and on.

Even with a guardian ad litem's approval and a DFCS Investigator's approval, a romantic Judge may actually believe in the father's acting job at the hearing and rule against the adoption.

As to written consents, they are long recitals and warnings and must be signed in front of a notary.

As to the Indian Tribal membership, that has to be dealt with successfully or all is voided and the lawyer who defrauds the court in this area faces sanctions and disbarment.

It's his child, too. You can't go around allowing one parent to give away the kids whenever they feel like it. The adoptive parents are in a terrible situation, but if there's fault here it lies with the biological mother and with whoever allowed the adoption to proceed without bothering to verify and document the father's consent.

It's his child, too. You can't go around allowing one parent to give away the kids whenever they feel like it. The adoptive parents are in a terrible situation, but if there's fault here it lies with the biological mother and with whoever allowed the adoption to proceed without bothering to verify and document the father's consent.

If the law is on the side of the biological father (which my hunch tells me that it probably is), I wonder if SCOTUS could rule in his favor, but make custody contingent on paying the 27 months of child support to the adoptive parents? That would be semi-Solomonic.

Freeman Hunt:The child is over two years old, and he's just now asking for her.

No, the child was over two years old by the time the case made its way to the Supreme Court. The biological father filed papers contesting the adoption when the child was only four months old, and pretty much immediately upon learning that there was going to be an adoption.

My wife and I have two adopted children, from China. Both were left without notes or any identifying information. We have no idea who or where their biological parents are and in all likelihood their biological parents have no idea where they are.

Horror stories like this one here were one big reason why we decided to adopt internationally instead of domestically in the first place.

There are a lot of other facts. One is that bio dad was a U.S. soldier in Iraq when he received notice of the proceedings and immediately asserted his rights in court when the child was four months old; (it might have been all avoided if the identification mistakes hadn't been made when the adoption agency contacted the tribe; not clear if theses were "intentional" or not.)

The delay and mistakes are not dad's fault; the adoptive parents rolled the dice, the Court took 23 more months to rule and then awarded dad custody; adoptive parents shouldn't get someone else's kid by adverse possession. Seems it's as much a father's rights case as an ICWA case.

Oh, well that's a lot different. If the guy is away when the child is born and asserts his rights immediately upon finding out that he needs to, of course he should get the child. Why wasn't he given the child 23 months ago?

It has always amazed me that adoptions (or even "safe surrenders") can take place without clear consent of both biological parents, assuming we know who they are.

Here it looks like the guy gave up his parental rights, assuming the child would be raised by the mother; he didn't think the first thing she'd do would be to hand the kid over to a third party, and frantically backtracked.

I don't think any adoption of a child both of whose biological parents are known out to proceed w/o express written consent of both of them.

The conventional wisdom is that Indian derives from Columbus' mistaken thought that he had reached the Indies.

I've also heard that the phrase is an anglicization of the spanish phrase "in dios" or "of God" which may have been used by the first Europeans to reach the Caribbean. (Wikipedia references this but I first heard it from an Indian elder years ago.) I'm not sure how much support there is for this.

I have worked with Indian tribes for almost 18 years and almost uniformly the phrase used by Indians and everyone in the communities is Indian.